Lim & Zong (No 2) - [2019] FCCA 3249

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIM & ZONG (No 2)

[2019] FCCA 3249

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – where applicant applied for a stay of interim orders – where applicant did not establish a proper basis for a stay – consideration of best interests of child – application for an order granting stay dismissed.

Legislation:

Family Law Act 1975 (Cth), s.102NA
Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(e)
Family Law Rules 2004 (Cth), r.22.11

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
McDonalds & Rogers [2007] FMCAfam 260
EJK & TSL (No.2) (2006) FamCA 806

Applicant:

MR LIM

Respondent:

MS ZONG

File Number:

BRC 8160 of 2014

Judgment of:

Judge Tonkin

Hearing date:

7 November 2019

Date of Last Submission:

7 November 2019

Delivered at:

Brisbane

Delivered on:

12 November 2019

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Solicitors for the Independent Children's Lawyer:

Julie Harrington Solicitor

ORDERS

The application filed by the applicant on 28 October 2019 seeking a stay of orders made on 20 September 2019 (as amended) is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Lim & Zong (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Brisbane

BRC 8160 of 2014

MR LIM

Applicant

And

MS ZONG

Respondent

REASONS FOR JUDGMENT

Introduction

On 24 September 2019 the applicant filed a Notice of Appeal to set aside interlocutory parenting orders made by me on 20 September 2019[1] suspending both time and communication with the child until further order and requiring the applicant to attend upon a psychologist. Further orders were made seeking assistance from the Independent Children’s Lawyer regarding an allegation that child exploitation material had been downloaded and traced to the applicant’s residential address by police.
[1] Amended on 30 October 2019 under Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.
This matter was initially listed for final hearing on 2 September 2019. Following the release of the Family Report the Independent Children’s Lawyer sought that the matter be listed on an urgent basis. The respondent mother in her affidavits raised issues that the applicant father had engaged in coercive and controlling behaviour towards her in the presence of the child over a significant period of time. The Family Consultant in her report dated 26 August 2019 recommended that the father spend no time and not communicate with the child. The Independent Children’s Lawyer was concerned that both parties were unrepresented. She sought an order for the applicant’s time to be supervised raising concerns about the risk he presented to the child.
The matter was listed before me for mention on 30 August 2019. Given the allegations of family violence and the fact that section 102NA of the Family Law Act 1975 was due to commence on 10 September 2019 the final hearing of the matter was adjourned to allow both parties to make application through the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lim & Zong (No 2)

Details

AGLC: Lim & Zong (No 2) [2019] FCCA 3249
Case: [2019] FCCA 3249
Decision Date: 12 November 2019

CaseChat Overview and Summary

In *Lim & Zong (No 2)*, Judge Tonkin of the Family Court of Australia considered an application by the applicant for a stay of interim orders previously made on 20 September 2019. The dispute concerned the applicant's request to suspend the operation of these existing orders.

The central legal issue before the Court was whether the applicant had established a proper basis for granting a stay of the interim orders. In determining this, the Court was required to consider the paramount consideration of the best interests of the child.

Judge Tonkin reasoned that the applicant had failed to demonstrate sufficient grounds to warrant a stay of the existing orders. The Court applied the principles governing applications for stays in family law proceedings, which necessitate a compelling case to be made, particularly when the welfare of a child is involved. Having found no such compelling case, the application was dismissed.

The Court ordered that the application filed by the applicant on 28 October 2019, seeking a stay of the orders made on 20 September 2019 (as amended), be dismissed.

Orders

Orders of the court

The application filed by the applicant on 28 October 2019 seeking a stay of orders made on 20 September 2019 (as amended) is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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